Oregon State Bar Bulletin  AUGUST/SEPTEMBER 2015

President’s Message

It’s been super being your president this year. Now that my term is more than halfway over, here are some issues for your consideration. Your comments are welcome at president@osbar.org.

Being President

This is a great job, but it is time consuming. By rough count, I attended in-person meetings (some taking an hour or two, some most or all of a day) or traveled in my role as OSB president on 64 of the 181 calendar days through the end of June. And it’s a rare day without spending some time (a few minutes to a few hours) on bar-related planning, making phone calls, writing pieces (like this article) and replying to emails. Some of the all-day commitments have been out of town or out of state.

I’ve been enjoying this — it’s the best nonpaid job I’ve ever had. In all seriousness, it’s a pleasure and an honor to work on issues important to the future of the legal profession and important to the people of Oregon. The bar staff is superb, and the bar is blessed with dedicated and effective volunteers. The time commitment works for me because as a full-time mediator, I can usually schedule requested engagements for days that don’t conflict with bar matters (though I sometimes have to ask counsel to start later than usual or to allow midday recesses).

Past and present members of the Board of Governors with whom I’ve talked agree that serving on the board (with its approximately one-out-of-three or -four chance of ending up as president) is challenging, interesting and professionally satisfying. As a bonus, close friendships are often formed with other board members and the bar staff. I encourage lawyers of diverse backgrounds and all practice types to consider running for the Board of Governors. Anyone interested should feel free to give me a call to discuss the opportunity.

New Executive Director

As previously announced, the board designated OSB General Counsel Helen M. Hierschbiel to succeed Sylvia E. Stevens as OSB executive director, effective Jan. 1, 2016. The Board of Governors decided that qualified applicants needed not only administrative experience but also to be a member of the Oregon State Bar with legal-related experience. Our thinking was that it takes a lawyer to understand the challenges of being a lawyer in the current economy and legal system and that it takes an Oregon lawyer to understand the special culture of our bar for civility and cooperation among opposing counsel.

We had several applicants who most definitely could have served as executive director with effectiveness and distinction, but Helen received a unanimous vote as the best-qualified candidate. She has experience in legal services for a Native American community in Arizona and in private practice in Oregon, and has served the OSB and the Oregon public for many years in the general counsel department. No one knows bar programs and issues better the she does. And many OSB members were kind enough to share their high opinion of Helen’s ability and her past willingness to answer questions and to help Oregon lawyers with their problems and concerns, minor and major.

If the board did nothing else while I serve as president, I would be proud that we made this excellent decision.

Rural and Small-Town Practice

It is becoming even clearer to me that one way to bridge the justice gap — finding ways for underemployed lawyers (often, but not always, newer lawyers) to assist the large portion of Oregonians who don’t consult lawyers — is to encourage lawyers to consider rural and small-town private practice.

On a recent road trip with Sylvia Stevens to visit local bars at the coast and in the southern Willamette Valley, lawyers in both places told us that their communities had more potential clients (yes, paying clients) than they could handle. These lawyers also told us that established lawyers in these communities were generous in providing advice and mentorship.

A challenge is that partners and spouses could have difficulty finding work, or simply may not want to live outside of Oregon’s bigger cities and towns. (And, several of the younger lawyers said that dating could be a problem. I’m sorry to tell you that we won’t be starting a dating service, online or otherwise).

You can expect to see stories in upcoming issues of the Bulletin about the challenges and successes of lawyers practicing in rural areas and small towns.

License Fees

This is the time of year that the bar staff and Board of Governors consider the bar budget for the coming year. While no decision has been made as of the time I write this report, it is quite possible that the Board of Governors will be requesting that the House of Delegates approves a small increase to the active member annual license fee (though possibly with a reduction of the assessment for the Client Assistance Fund).

This would be the first license fee increase since 2006.

The board and I are concerned about the impact of even a small fee increase on struggling lawyers, especially unemployed lawyers, and on newer lawyers in private practice who must also pay the annual PLF assessment and the other costs of running a business.

The OSB is, frankly, a relatively high-fee bar, but it is also a high-service bar. Like many state bars, the OSB is a “mandatory” bar, meaning that practicing lawyers are required to be members. In some other states without mandatory bars, a lawyer need only pay a fee to a state agency — usually an instrumentality of state’s highest court — in order to practice. Some but not all of the lawyers in the nonmandatory states join the voluntary bar associations, which provide the kinds of services (CLE, public service and legislative relations, practice books and practice guides, public relations and public education, lawyer referral services, and the like) that the OSB makes available to lawyers and the public. Remember also that the largest program supported by our budget is discipline — for which we will all be paying no matter what — because the legislature will never make the taxpayers foot that bill, nor should it.

Be assured that any request to increase the license fee will be made only after careful consideration and extensive discussion.

CLEs and Sections

As part of ongoing program and budget review, the board has been looking at the structure of the CLE Seminars program and also the role and operations of bar sections.

Members tell us that the OSB CLE Seminars program is an important bar service. However, as we all know from looking at our incoming emails every day, there are many competing providers, both nonprofit and for profit. Some packages from other providers offer a package covering the full three-year requirements for a low price, but the content may be generic and not oriented to Oregon practice issues.

Oregon CLE programs are also a fine way for our colleagues to showcase their expertise to other OSB members and to raise the quality of services provided to Oregon clients.

The board’s goal is to enable the bar to offer useful CLEs, but on the basis that the program starts to pay for itself, which has not been the case for many years. After a thorough review of the program, we have identified a number of policy issues that we are now addressing. One of them is internal competition. With one set of policies we expect our seminars department to break even, and with another set of policies we encourage our own programs, committees and sections to sponsor free and low-cost CLE — and we support those efforts with general member fees. We are taking steps in several areas to address this disconnect, and we are continuing our discussions with our sections and other bar groups.

Our discussion of bar sections, which is ongoing, includes their purpose and functions. Important functions of bar sections include professional development through CLEs, fostering networking among lawyers in a practice area and promoting law reform and improvement in subjects in which members have special expertise. The volunteers who sit on section executive committees, testify in support of bar-sponsored legislation and organize and present CLEs provide superb service to OSB members and the general public.

The OSB currently has 42 sections, while Washington, a larger bar, has 27, and California, a much larger bar, has only 16. Questions to consider include whether there should be a minimum number of members to maintain a section and whether very large sections should be encouraged to form independent practice-area organizations separate from the OSB. Meanwhile, we are requiring uniform website “branding” for quality control and to underscore that sections are not independent organizations, but rather are instrumentalities of the state bar. We are also encouraging sections with very large year-to-year dollar surpluses to use that money for section purposes, rather than having it sit idle.

Military and Veterans Law Section

Speaking of sections, and as a U.S. Navy veteran myself, I want to encourage interested OSB members to join the relatively new Military and Veterans Law Section. As with all sections, membership is open to any interested OSB member. Membership would be useful not only to veterans and active-duty service people but also to lawyers who may wish to develop a practice serving veterans in connection with benefits issues, as well as become more broadly attuned to special aspects of legal concerns arising from present or past military service.

To join the Military and Veterans Law Section, go to www.osbar.org/ sections/index.html#join.

Limited License Legal Technicians

OSB members who are also licensed in Washington, as I am, and others, may be aware of the new Limited License Legal Technician (LLLT) program in Washington. Washington recently licensed its first group seven of qualified applicants, who must have associate degrees, 45 hours of academic credit in paralegal studies and 3,000 hours of work under supervision of licensed lawyers.

Here’s how the Washington State Bar website describes the program:

Washington is the first state in the country to offer an affordable legal support option to help meet the needs of those unable to afford the services of an attorney.Legal Technicians, also known as Limited License Legal Technicians (LLLT), are trained and licensed to advise and assist people going through divorce, child custody and other family law matters in Washington. Think of them like nurse practitioners, who can treat patients and prescribe medication like a doctor. Licensed Legal Technicians bring a similar option to the legal world, making legal services more accessible to people who can’t afford an attorney. While they cannot represent clients in court, Legal Technicians are able to consult and advise, complete and file necessary court documents, help with court scheduling and support a client in navigating the often confusing maze of the legal system.

The Board of Governors decided to watch the Washington program before making any recommendations for Oregon. My personal view is that we have many underemployed lawyers who could provide similar — and more advanced — services at reasonable cost to clients. Newer lawyers need better clinical training in law school, and the OSB needs to do a better job at assisting newer lawyers in their transition to practice. Perhaps the answer is two years of mostly academic work in law school, with some clinical experience, followed by a third year of internship in law practice settings. This is a difficult challenge, but it needs our thoughtful attention.

Unlawful Practice of Law

One of the bar’s statutory mandates is to investigate allegations of the unlawful practice of law. The Board of Governors has evaluated the bar’s UPL enforcement activities after the U.S. Supreme Court handed down its decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 SCt 1101 (2015). The litigation began when the FTC accused the North Carolina Board of Dental Examiners of engaging in anticompetitive conduct in violation of the Sherman Act by sending letters to non-dentists demanding that they cease and desist from providing teeth-whitening services because, the dentists argued, teeth whitening is the practice of dentistry.

The court agreed the conduct was anticompetitive and further determined that the dental board was not entitled to state-action immunity from federal antitrust law because its activities were not adequately supervised by the state of North Carolina.

In response to this decision, the Board of Governors has adopted amendments to applicable OSB bylaws, including: 1) changing the makeup of the unlawful practice of law committee; 2) discontinuing the use of cautionary letters and cease-and-desist agreements; 3) requiring that recommendations for litigation be grounded in clear and convincing evidence and protection of the public from harm, and; 4) redoubling consumer education efforts and cooperating closely with other agencies engaged in consumer protection activities.

A reality is that we lawyers have many competitors. A few examples are “estate planners” such as accountants and insurance agents, tax resolution companies, lien preparers and even auto body shops offering to “handle your claim with the insurance company.” Putting antitrust concerns to the side for a moment, lawyers can compete in a positive way by educating the public on how we can achieve client goals in a cost-effective and efficient way.

To further consumer education, the OSB launched a campaign in 2014 to combat notario fraud by “immigration consultants” by sponsoring the Notario Fraud Conference in September 2014. Then-Secretary of State Kate Brown was the keynote speaker at the conference, which brought together key representatives from state and not-for-profit entities with expertise in addressing notario fraud issues. In cooperation with the state of Oregon, the bar developed and printed “Stop Notario Fraud” brochures in Spanish that were distributed at the conference and subsequent outreach events. More information on the bar’s notario fraud prevention work, including an electronic copy of the brochure, is at www.osbar.org/upl/notario.html.

Conclusion

Once again, I’m grateful to be president of the Oregon State Bar. The work is a privilege and pleasure. I invite your comments on the foregoing points (or on anything pertaining to the OSB), sent to president@osbar.org.